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to which they belong in its operations against what is known in military phrase as “an enemy." (1872) 14 Op. Atty. Gen. 22.

Improper induction.-One claiming that his induction into the Army was illegal (lut not void) was bound, while in the Army, to obey orders and observe discipline and is liable to trial by court-martial for failure to do so. Ex parte Tinkoff (D. C. 1919), 254 Fed. 912.

Effect of separation from the service, A court-martial may adjudge a sentence extending beyond the time of service for which the accused had enlisted. Stubbs (C. C. 1905), 133 Fed. 1012; Ex parte Mason (1881), 105 U. S. 696.

The fact that an Army officer sentenced by a court-martial to fine and imprisonment is by the same judgment dismissed from the service does not deprive the milltary authorities of jurisdiction to carry out the sentence. Carter McClaughry (1902), 183 U. S. 365, 383; Kahn v. Anderson (1921), 254 U. S. ; 65 L. Ed. 288; Rose v. Roberts (C. C. A. 1900), 99 Fed. 948.

Tbe authorities on the general question whether a member of the military or naval forces continues subject to the jurisdiction

of a court-martial for offenses committed while in the service, where prosecution is not instituted until after he has left the service, reviewed. (1919) 31 Op. Atty. Gen. 521.

An inactive member of the Naval Re. serve is not subject to trial by court. martial after release from active service. C. S. v. McDonald (D. C. 1920), 265 Fed. 695.

Nor can he be recalled into service in order merely to be given a court-martial. U. S. v. Warden of Naval Prison (D. C. 1919), 265 Fed. 787.

See last paragraph of art. 94, post.

Estoppel.-Enlistment in National Guard, taking the Federal oath as prescribed by the national defense act of June 3, 1916, receipt of pay and clothing over long period from both the State and United States held to constitute one a soldier, subject to juris. diction of military tribunals, although he was under 21 when enlisted, enlisted with. out consent of parent or guardian, was an alien who had not made declaration of intention, and had mother dependent on him for support. Ex parte Dostal (D. C. 1917), 243 Fed. 664.

Marine Corps serving with Army.-See notes to 481, ante.


Art. 3. Courts-martial classified.-Courts-martial shall be of three kinds, namely:

First, general courts-martial;
Second, special courts-martial; and
Third, summary courts-martial.
Same as in Code of 1916.

A similar organization is prescribed for the National Guard not in the service of the United States. See sec. 102, act of June 3, 1916, ante, 2538.

Notes of Decisions.

See, also, notes to art. 5, post.

Historical.-The law governing courts. martial is found in the statutory enactments of Congress, particularly in the articles of war, in regulations prescribed by Executive authority, and in military usage and procedure. In re Brodie (1901), 128 Fed. 665, 63 C. C. A. 419.

Constitutionality of acts relating to courtsmartial.-The acts of Congress touching Army courts-martial established in the United States are constitutional.

U. S. v. Praeger (D). C. 1907), 149 Fed. 474.

The power of Congress under art. 1, sec. 8 of the Constitution, to provide for the panishment of military and naval offenses, is independent of the judicial power de. fined in art. 3 of the Constitution. U. S. v. McDonald (D. C. 1920), 265 Fed. 754.

Nature and attributes of courts-martial in general.- Courts-martial are lawful tribunals existing under the Constitution and acts of Congress, having plenary jurisdiction of offenses committed to them by the law military, and they are supreme while acting within the sphere of their exclusive jurisdiction Carter v. Roberts (1900), 20 Sup. Ct. 713, 177 U. S. 496, 44 L. Ed. 861; Rose v. Roberts (1900), 99 Fed. 948, 949, 40 C. C. A. 199; In re Bogart (C. C. 1873), Fed. Cas. No. 1,596.

Courts-martial are lawful tribunals existing by the same authority as civil courts of the United States, have the same plenary jurisdiction in offenses by the law military as the latter courts have in controversies within their cognizance, and in their special and more limited sphere are entitled to as

untrammeled an exercise of their powers. The graduated cadets of the Military In re Davison (C. C. 1884), 21 Fed. 618. Academy, assigned to service as supernu

Procedure.- In the absence of a regula- merary officers, are brevet second lieutentory statute, the proceedings of courts- ants, and as such commissioned officers, martial are governed by the usages and cus- and therefore subject to all the duties and toms of the military service, and not by entitled to exercise all the powers of that common-law rules applicable to civil tribu- grade, inclu ng the legal capacity to sit nals. Kirkman v. McClanghry (1908), 160 on courts-martial as commissioned officers. Fed. 436, 90 C. C. A. 86, afirming order But the undergraduate cadets are not com(C. C. 1907), 152 Fed. 255.

missioned officers, and therefore are not Rules of evidence in general.-In general, competent to sit on a court-martial. (1821) courts-martial are governed by the same 1 Op. Atty. Gen. 469; (1829) 2 Op. Atty. rules of evidence which govern the ordi- Gen. 251 ; (1829) 7 Op. Atty. Gen. 323. nary courts of criminal jurisdiction. These Volunteer naval officers appointed under rules, where not provided by statute, are act of July 24, 1861, held "commissioned supplied by the common law. (1882) 17 officers," and competent to serve on generat Op. Atty. Gen. 310.

courts-martial. (1863) 10 Op. Atty. Gen. Opinions as to admissibility of evidence.- 522. It is not the official duty of the Secretary See, also, notes under art. 5, post. of War to give to the judge advocate, and Showing of validity, etc., of proceedings.-thus to the court-martial, an opinion as to Evidence that the accused, at the time of the admissibility of certain evidence in the his trial and conviction for a homicide betrial of a case before the court, nor as to fore a general court-martial, had a military the construction of a statute.

Such ques

status, is adinissible on habeas corpus tions should be left to the decision of the where, except for the form of charge, the court-martial itself. (1881) 17 Op. Atty. court-martial record failed to establish that Gen. 54.

the accused belonged to the Army, but did Jurisdiction of military commissions.- establish on its face the power to convene See Ex parte Milligan (1866), 4 Wall. 2, the court-martial, so that the authority of 130, 18 L. Ed. 281 : Coleman v. Tennessee that court to decide the particular subject (1878), 97 U. S. 509, 512, 24 L. Ed. 1118. before it was undoubted. Givens v. Zerbst

Officers competent to sit on courts-mar- (1921), 254 U. S. ---; 65 L. Ed. 284; In tial.--Retired officers of the Army are offi- re Bergdoll (D. C. 1921), Fed. cers in the military service of the United Courts-martial being courts of inferior States within the meaning of the Fourth and limited jurisdiction, it must be made to Article of War, post, and an order assign- clearly and affirmatively appear, in order ing such officers to court-martial was to give effect to their judgments, that the within the authority conferred upon the court was legally constituted, that it had Secretary of War by 2431, ante, to assign jurisdiction or

the person

and offense retired officers of the Army, with their con- charged, and that its judgment imposed sent, to active duty courts-martial. was conformable to law. Hamilton . MeKahn v. Anderson (1921), 254 V. S.

Claughry (C. C. 1905), 136 Fed. 445; 65 L. d. 28s ; U. S. 1. Tyler (1981), 105 Brooks v. Adams (1831), 28 Mass. 441 : U. S. 244.

Mills 0. Martin (N. Y. 1821), 19 Johos. Officers of the United States Guards. a 7; Duffield v. Smith (Pa. 1818), 3 Serg. force organized by the President under the & R. 590. power conferred on him by sec. 2. of the Proof that court-martial was conselective service act, ante 2163, were, since vened by an officer empowered by the by the express terms of sec. 1 of said act, statute to call it, that the officers whom a part of the Army of the United States, he commanded to sit upon it were of those competent to be assigned to court-rnartial wbom he was authorized to detail for that duty. Kahn ». Anderson (1921), 254 U. S. purpose, that the court thus constituted was

; 65 L. Ed. 288. (Query, was not vested with power to try the person and reference to see. 1 of the national defense the offense charged, and that its sentence act of June 3, 1916, intended?)

was in conformity to the statute. was inOn habeas corpus, evidence is inad- dispensable to its jurisdiction and to the missible to show that retired officers who validity of its judgment. Deming v. Mo composed the court-martial in time of war Claughry (1902), 113 Fed. 639, 51 C. C. were employed on active duty in the dis- A. 349; order affirmed, MeCl ghry . cretion of the President, when that fact Deming (1992), 22 Sup. Ct. 786, 186 U. S. is not shown by the record.

Ex parte

49. 46 L. Ed. 1019. Henkes (D. C. 1919), 207 Fed. 276; re- But it is not necessary, on the trial beversed (C. C. A. 1921)


fore a general court-martia), to negative but compare Givens 1. Zerbst (1921), 254 every possible condition the existence of U. S. ; 65 L. Ed. 281.

| which might have prevented the court from





trying the case, including the possibility that the officer under trial might have belonged to a command which did not come within the power to call a court-martial conferred upon the convening oficer. Givens v. Zerbst (1921), 254 U. S. : 63 L. Ed. 284. Compare Ex parte Henkes (D. C. 1919), 267 Fed. 276; reversed (C. C. A. 1921), Fed.

Estoppel to deny legality of court-mar. tial.--Though an officer, suspended from rank and duty for twelve years, with a forfeiture of half his pay, waited six years before bringing an action, It can not be held that he acquiesced in the sentence, or that he is concluded from contesting its legality by accepting the hall pay without rendering service. Swaim v. U. S. (1893), 28 Ct. Cl. 173.

Waiver of objections to jurisdiction of court-martial.--Since a United Status courtmartial, constituted to try delinquent militiamen, sit as judges, a party arrested waives all objections to the jurisdiction of the court by pleading guilty. Vander heyden v. Young (N. Y. 1814), 11 Jobps. 150. But see (1898) 22 Op. Atty. Gen. 137, holding that the consent of the accused can not confer jurisdiction upon a court not possessing it by virtue of statutory authority.

Review of decisions.--- Where a court-martial has jurisdiction of the person accused and of the offense charged, and acts within the scope of its lawful powers, its decisions and sentences can not be reviewed or set aside by the civil courts. Mullan v. U. S. (1909). 212 U. S. 516; U. S. v. Grimley (1890), 11 Sup. Ct. 54, 137 U. S. 147, 34 L. Ed. 636, reversing judgment in re Grimley (C. C. 1889), 38 Fed. 84 ; Swaim ". U, S. (1897), 17 Sup. Ct. 418, 451, 165 U. S. 553, 41 L. Ed. 823; In re Zimmerman (C. C. 1887), 30 Fed. 176, 177 ; In re Meley (D. C. 1885), 23 Fed. 878 ; U. S. 1. Praeger (D. C. 1907), 149 Fed. 474 ; Ex parte Tucker (D. C. 1913), 212 Fed. 569; U. S. V. McDonald (D. C. 1920), 265 Fed. 754; In re Feinler (Sup. Ct., D. C., 1921), 49 Wash, L. R. 147.

The only authority of the civil courts is to inquire whether the military authorities are proceeding regularly within their jurisdiction. If they are, they can not be interfered with, no matter what errors may be committed in the exercise of their lawful jurisdiction. U. S. t. Grimley (1890), 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 6:36, reversing judgment in re Grimley (C. C. 1889), 38 red. 84 ; C. S. 1'. Willlford (C. C. A. 1915), 220 Fed. 291 ; Ex parte Dostal (D. C. 1917), 243 Fed. 664: Swaim U. U. S. (1897), 17 Sup. Ct. 448, 451, 165 U. S. 553, 41 L. Ed. 823; Carter v. Roberts (1900), 20 Sup. Ct. 713, 177 U. S. 496,

44 L. Ed. 861; Grafton v. U. S. (1907), 27 Sup. Ct. 749, 750, 206 U. S. 333, 51 L. Ed. 1084, 11 Ann. Cas. 640; Ex parte Mason (1881), 105 U. S. 696, 699, 26 L, Ed. 1213; In re McVey (D. C. 1885), 23 Fed. 878; Ex parte Tucker (D. C. 1913), 212 Fed. 569 ; In re Esmond (D. C. 1886), 5 Maekey, 64. And this is so even though the civll court, if it had first taken hold of the case, might have tried the accused for the same offense, or even for one of higher grade arising out of the same facts. Grafton 1. U. S. (1907), 27 Sup. Ct. 749, 750, 206 U, S. 333, 51 L. Ed. 1084, 11 Ann. Cas. 640.

Civil courts have no jurisdiction to interfere with the military tribunals, while proceeding regularly in the exercise of their jurisdiction to try parties accused of desertion from the Army. In re White (C. C. 1883), 17 Fed. 723.

The jurisdiction of a general court-martial may always be inquired into by the civil courts, upon the application of any party aggrieved by its judgment; and it such court exceeds its authority, and undertakes to try and punish a person not within its jurisdiction, its judgment is void, and may be so declared by any court having jurisdiction of the proper parties and of the subject-matter. Barrett v. Hopkins (C. C. 1881), 7 Fed. 312; Dynes v. Hoover (1857), 20 How. 65, 82, 15 L, ICd. 838.

The acts of a court-martial, within the scope of its jurisdiction and duty, can not be controlled or reviewed in the civil courts by writ of probibition or otherwise. Smith v. Whitney (1886), 116 U. S. 167, 177, 6 Sup. Ct. 570, 29 L. Ed. 601.

If a court-martial has jurisdiction to hear and determine, and to render the particular judgment or sentence imposed, however erroneous the proceedings may be, they can not be reviewed collaterally upon habeas corpus. In re Davison (C. C. 1884), 21 led. 618.

The only questions which be in quired into are as to the jurisdiction of the court over the person of the accused and the offense charged, and whether it acted within the scope of its lawful powers. Rose v. Roberts (C. C. A. 1900), 09 Fed. 948; In re Crain (C. C. 1897), 84 Fed. 788.

If a court-martial originally had jurisdiction, it must be shown, to warrant interference, that at some point it lost it. U. S. v. Hunt (D. C. 1918), 254 Fed. 365,

The severity of a sentence, or alleged errors of law committed by the court-martial, can not be reviewed. Ex parte Dickey (D. C. 1913), 204 Fed. 322.

Where, on return to a writ of habeas corpus, the respondent alleged that he held the petitioner under a judgment of convic.


U. S. 6.

tion by a military court-martial, the burden is on the respondent to show that the judgment was based on some provision of positive law. Hamilton v. McClaughry (C. C. 1905), 136 Fed. 445.

Where a court-martial bas jurisdiction, error in its exercise can not be reviewed in a proceeding by an Army officer, sentenced by such court to be dismissed from the service, to recover arrears of pay, on the ground that he never was dismissed in fact, by reason of the failure of the President

of the United States to approve the sen-
terce. And specifications of a charge, tried
by a court-martial, not objected to for in-
sufficiency on the trial, will not be held on
their face incapable of sustaining the charge,
on review of such proceedings.
Fletcher (1893), 13 Sup. Ct. 552, 554, 555,
148 U.-S. 84, 37 L. EU. 378.

Review by supreme court of proceedings of military commission, see Ex parte Val. landigham (1863), 1 Wall. 243, 251, 17 L. Ed. 589.


Art. 4. Who may serve on courts-martial.--All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts. martial for the trial of any persons who may lawfully be brought before such courts for trial. When appointing courts-martial the appointing auí hority shall detail as members thereof those officers of the command who, in his opinion, are best qualified for the duty by reason of age, training, experience, and judicial temperament; and oflicers having less than two years' service shall not, if it can be avoided without manifest injury to the service, be appointed as members of courts-martial in excess of the minority membership thereof.

The sentence beginning “ When appointing," etc., is new. It embodies “ advice" to the same effect given convening authorities in Changes No. 5 to par. 6, Manual for Courts-Martial, July 14, 1919.

By a proviso in sec. 4, act of Apr. 25, 1914, ante, 2499, it was provided that no distinc. tion should be made in respect to the eligibility of any officer of the Regular Army, the or. ganized militia while in the military service of the United States, and the volunteer forces, for service upon any court-martial, court of inquiry, or military commission.

See notes under art. 5, post.

Art. 5. General courts-martial.--General courts-martial may consist of any number of officers not less than five.

Art. 5, Code of 1916, read as follows:

"ART. 5. GENERAL COURTS-MARTIAL.-General courts-martial may consist of any pumber of officers from five to thirteen, inclusive; but they shall not consist of less than thirteen, when that number can be convened without manifest injury to the service."

Notes of Decisions.

See, also, notes to art. 3, ante.

Department commander.-In the absence of legislation, or of orders from competent authority, forbidding it, personal presence within the territorial limits of his command is not essential to the validity of an order given by a department commander appointing a court-martial within such limits. He may appoint general courtsmartial, and act upon the record of proceedings of the same, when outside the territorial limits of his command. (1880) 16 Op. Atty. Gen. 679.

Trial as due process of law.-Trial by a court not legally constituted is not a trial which can be said to be "due process of law." (1898) 22 Op. Atty. Gen. 137.

Number of members.--This section is merely directory to the officer appointing the court, and his decision as to the nonber which can be convenes without mapifest injury to the service, being submitted to his sound discretion, is conclusive. Mar. tin 1. Mott (1827), 12 Wheat. 13, 35, 6 L. Ed 537 ; Kahn v. Anderson (1921), 254 U. S. -; 65 L. Ed. 288; (1832) 2 Op. Atty. Gen. 534; (1854) 6 Op. Atty. Gen. 506. But where the court is of the minimum number, the incompetency of

one member renders the proceedings void ab initio. Brown v. U. S. (1906), 41 (t. Cl. 275.

Where one of the five officers composing a court-martial was absent during part of the trial, he was not qualified to take part in the sentence, and the tribunal in consequence not being composed of the requisite number of officers, it was not qualified to pronounce judgment. (1831) 2 Op. Atty. Gen. 114.

Where a general court-martial was, after report, required by the Secretary of War to reassemble and revise its sentence, and on reassembling two of the original were absent, but a legal quorum remained, the court might lawfully revise its sentence. (1835) 7 Op. Atty. Gen. 338.

Art. 6. Special courts-martial.--Special courts-martial may consist of any number of officers not less than three.

Art. 6, Code of 1916, read as follows:

"ART. 6. SPECIAL COURTS-MARTIAL.-Special courts-martial may consist of any number of officers from three to tive, inclusive."

See notes under arts. 3 and 5, ante.

Art. 7. Summary courts-martial.- A summary court-martial shall consist of one officer.

Same as in Code of 1916.
See notes under arts. 3 and 5, ante.


Art. 8. General courts-martial.—The President of the United States, the commanding officer of a territorial division or department, the Superintendent of the Military Academy, the commanding officer of an army, an army corps, a division, or a separate brigade, and, when empowered by the President, the commanding officer of any district or of any force or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution.

The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose tine appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. The law member, in addition to his duties as a member, shall perform such other duties as the Presi. dent may by regulations prescribe.

The second paragraph is new.
See notes under art. 5, ante.

The President is also empowered to appoint courts-martial in the particular case provided for by R. S. 1230, ante 2447.

For the authority to appoint general courts-martial in the National Guard not in the service of the United States, see sec. 103, act of June 3, 1916, ante 2539.

Notes of Decisions.

Construction. The term “ district" as used in this article has no technical military meaning but includes the territory occupied by a permanent military camp. Ex parte Givens (1920), 262 Fed. 702.

Power of President.--In addition to the statutory authority conferred upon him by this section, the President is also empowered to appoint general courts-martial by

virtue of being commander in chief of the Army.

Swaim t'. U. S. (1897), 165 U. S. 553.

The authority of the President, under this article, to empower “the commanding officer of any district or of any force or body of troops" to appoint general courtsmartial, was not exceeded by a general order giving the power stated to certain

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